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M&A Diligence: when term sheets can be legally binding (again)

Back in March 2016, we reported on the case of New Media Holding Company LLC v Kuznetsov [2016] EWHC 360, where the High Court held that a term sheet was legally binding, even though the document referred to itself as being a “Term Sheet describing principal terms and conditions of Company share management and control” and, on the face of the document, made no reference to consideration. Despite Mr Kuztenov arguing that the term sheet was a “casual and informal” document, the Court was swayed by the fact that it had been drafted by lawyers and the rights granted to the other party were expressed in unqualified legal terms. It even contained an express governing law and jurisdiction clause, the purpose of which the court found difficult to understand “absent an intention to create a legally binding agreement”. The term sheet was therefore deemed to be legally binding and not “merely a document that was aspirational”.

The recent case of Arcadis Consulting (UK) Limited v AMEC (BSC) Limited [2016] EWHC 2509 (TCC) serves to re-iterate that term sheets can form the basis of a legally-binding contract, although the Arcadis case involved a number of forms of contract passing between the parties, rather than just one term sheet.

The facts of the case were that Arcadis and AMEC were in the process of negotiating the terms of an agreement for the design of a car park, and became involved in a “battle of the forms” where one party would send a version of the agreement to the other, only to receive a different set of terms in response. Various versions went between them and no formal contract was ever signed. However, during the process, AMEC sent a letter to Arcadis instructing Arcadis to begin work (which it did).

A dispute later arose over liability and whilst AMEC argued there was no contract between it and Arcadis, Arcadis countered that a binding agreement did exist and it included a term contained in the last version of the document circulated by Arcadis which limited Arcadis’ liability. Whilst the court agreed that there was a binding contract between the parties, it concluded that the terms of this contract were limited to the brief summary set out in the instruction letter. No other terms of the versions circulated between Arcadis and AMEC applied (including the liability limitation clause); on that basis, Arcadis’ liability was uncapped.

As in the Kuznetsov case, the decision in the Arcadis case provides a helpful summary of the applicable principles determining whether or not there is a binding contract between parties, with the judge referring to the elegant summary of Lord Clarke in RTS Limited v Molkerei Alois Müller GmbH [2010] 1 WLR 753:

“It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they had regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.”

Applying this to term sheets in an acquisition or fundraising context, it is important for the parties to ensure all key commercial terms of a deal are contained within any document agreed between them. Parties also should think carefully about performing a contract which is still being negotiated – otherwise, they run the risk of creating a binding contract by conduct which fails to incorporate the non-finalised terms.